Pre-employment
right to work checks

What is a right to work check?

A right to work check is a compulsory Home Office process to validate that an employee or a prospective employee – whether permanent or temporary, has the legal right and permission to work in the UK before they start their employment. The aim of a right to work check is to prevent working by individuals who are not legally permitted to undertake employment in the UK, or to do the type of work in question for you.

We recommend that all right to work checks are conducted at the point an offer of employment is made. Any offer of employment should always be conditional upon the right to work requirement being satisfied which then leaves scope to retract the offer, or deal with any problems that might arise, prior to the start of the employment.

Who should you carry out right to work checks on?

As a UK employer, you have a legal obligation to conduct right to work checks on all potential employees. Employers risk falling foul of race discrimination laws if they treat individuals differently based on their race, or perceived race, when carrying out right to work checks. To avoid discrimination, right to work checks must be completed regardless of the origin of the employee because assumptions about a person’s nationality and, hence, their legal right to work can be incorrect.

When should you carry out right to work checks?

You must carry out a right to work check before you employ a person to work for you. If an individual’s right to work is time-limited, you should conduct a further follow-up check shortly before it is due to come to an end to ensure they have a new or extended right to work in the UK.

What is a statutory excuse?

A statutory excuse is an employer’s defence against a civil penalty. If you conduct a compliant right to work check, you will have a statutory excuse (defence) against a civil penalty (fine) should your employee be found to be ineligible to work in the UK because of their immigration status.

In order to establish a statutory excuse against a civil penalty, employers must do one of the following before the employee commences employment:

• a manual right to work check
• a right to work check using Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP)
• a Home Office online right to work check

How do I carry out a right to work check?

There are three main ways to carry out a right to work check. These are:

• an in person manual right to work check using physical documents; or
• using Identity Document Validation Technology (IDVT), through the services of an Identity Service Provider (IDSP); or
• using the Home Office online right to work check service (which can be found here).

You can also use the Employer Checking Service where an individual has an outstanding appeal, review or application with the Home Office, or if they arrived in the UK before 1989 and do not have documents to prove their immigration status or right to work.

You only need to use the Employer Checking Service if you cannot check the applicant’s right to work online using their share code or check the applicant’s original documents.

Manual right to work document checks

To carry out a manual right to work check, you will need to follow 3 main steps:

Step 1: Obtain right to work documents

Step 2: Check right to work document

Step 3: Copy and retain a copy of right to work documents

You need to complete all three steps before employment commences to ensure you have conducted a check in the prescribed manner, in order to establish a statutory excuse.

Step 1: Obtain right to work documents

The first step in completing a manual right to work check is to ask for certain documents from your prospective employee. It is important to ask for the original documents, not copies. The documents acceptable to the Home Office are defined in three lists, List A, List B Group 1 or List B Group 2.

List A (for those with a permanent right to work in the UK)

List A includes documents for people who have a permanent right to work in the UK. As such, once you have completed the right to work check process before employing the individual (i.e. the pre-employment check), you will not need to complete any follow-up right to work checks. You will have a continuous statutory excuse while the employee is in your employment.

List B Group 1 (for those with a time-limited right to work in the UK)

List B Group 1 documents provide a time-limited statutory excuse. This statutory excuse runs out when the employee’s right to work expires (i.e. when their work visa expires). Employers will need to ensure they carry out a further right to work check just before the employee’s permission expires.

List B Group 2 (for those with a time-limited right to work in the UK for 6 months)

List B Group 2 documents also provide a time-limited excuse, but for a fixed period of 6 months on the Positive Verification Notice. Employers will need to ensure they carry out a further right to work check just before the 6 month statutory excuse expires.

Important Note: If the employee presents a document from List A during a repeat check, then no further checks will be required during the course of their employment.

Step 2: Check the right to work documents

Once you have obtained the documents, you will then need to check that the person has the right to work, and that:

• There is no evidence that the documents are fake or have been tampered with
• The names on the documents are correct and consistent across all documents (bearing in mind if the person has changed their name through marriage or divorce)
• That the photos match and are consistent across all documents provided
• any dates, including the date of birth, are correct and are consistent across all documents provided
• Whether there are any work restrictions (often stated on biometric residence permits)

Step 3: Copy and retain a copy of right to work documents provided

Once you are satisfied the documents are valid, and the person does have the legal right to work in the UK, you must make a clear copy of each document in a format which cannot manually be altered and retain the copy securely: electronically or in hardcopy. You must also retain a secure record of the date on which you made the check. Simply writing a date on the copy document does not, in itself, confirm that this is the actual date when the check was undertaken. If you write a date on the copy document, you must also record that this is the date on which you conducted the check. The Home Office states that documents must be stored for the length of the person’s employment and for two years after they leave (at which point the documents must be securely destroyed). The following must be copied and retained:

• Passports: any page with the document expiry date, the holder’s nationality, date of birth, signature, immigration permission, expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK (visa or entry stamp) and undertake the work in question (the front cover no longer has to be copied).
• All other documents: the document in full, including both sides of an Immigration Status Document and an Application Registration Card.

If you have correctly carried out the above 3 steps you will have a statutory excuse against liability for a civil penalty if the prospective or existing employee is found working for you illegally. However, you need to be aware of the type of excuse you have as this determines how long it lasts for, and if, and when you are required to do a follow-up check.

If the documents that you have checked and copied are from:

• List A: You will establish a continuous statutory excuse for the duration of that person’s employment with you if you have conducted the right to work checks correctly before employment begins. You do not have to conduct any further checks on this individual.
• List B group 1: You will establish a time-limited statutory excuse which expires when check the person’s permission to be in the UK expires. You should carry out a follow-up when the document evidencing their permission to work expires.
• List B group 2: You have a time-limited statutory excuse which expires 6 months from the date specified in your Positive Verification Notice. This means that you should carry out a follow-up check when this notice expires.

Lists of acceptable documents for manual right to work checks

As outlined above, employers must ensure the documents provided by employees are acceptable to the Home Office. The acceptable documents within each group are as follows (note: these are taken directly from the official Home Office guidance):

List A – acceptable documents to establish a continuous statutory excuse

1. A passport (current or expired) showing the holder is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.

2. A passport or passport card (in either case, whether current or expired) showing that the holder is an Irish citizen.

3. A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted unlimited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.

4. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time-limit on their stay in the UK.

5. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK, or has no time-limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

6. A birth or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

7. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

8. A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

List B Group 1 – documents where a time-limited statutory excuse lasts until the expiry date of permission to enter or permission to stay

1. A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question.

2. A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man, which has been verified as valid by the Home Office Employer Checking Service, showing that the holder has been granted limited leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules, Appendix EU to the Immigration (Bailiwick of Guernsey) Rules 2008 or Appendix EU to the Isle of Man Immigration Rules.

3. A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a government agency or a previous employer.

List B Group 2 – documents where a time-limited statutory excuse lasts for six months

1. A document issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme) on or before 30 June 2021 together with a Positive Verification Notice from the Home Office Employer Checking Service.

2. A Certificate of Application (digital or non-digital) issued by the Home Office showing that the holder has made an application for leave to enter or remain under Appendix EU to the immigration rules (known as the EU Settlement Scheme), on or after 1 July 2021, together with a Positive Verification Notice from the Home Office Employer Checking Service.

3. A document issued by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man showing that the holder has made an application for leave to enter or remain under Appendix EU(J) to the Jersey Immigration Rules or Appendix EU to the Immigration Rules (Bailiwick of Guernsey) Rules 2008, or Appendix EU to the Isle of Man Immigration Rules together with a Positive Verification Notice from the Home Office Employer Checking Service.

4. An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.

5. A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.

Digital identity verification for British and Irish citizens

Digital Identity Document Validation Technology (IDVT) conducted by an Identity Service Provider (IDSP) is the process of digitally obtaining evidence from a prospective employee to validate their identity, checking that supporting documents are valid and belong to the person who is claiming it.

3 basic steps to conducting a right to work check using an IDSP

• Step 1: Use an IDSP to carry out digital identity verification.

• Step 2: Satisfy yourself that the photograph and biographic details (for example, date of birth) on the output from the IDVT check are consistent with the individual in person (i.e. the information provided by the check relates to the individual and they are not an imposter).

• Step 3: Retain a clear copy of the IDVT identity check output for the duration of employment and for two years after the employment has come to an end.

Acceptable documents for digital identity verification right to work checks

1. valid (in-date) British passports

2. valid (in-date) Irish passports

3. valid (in-date) Irish passport cards

Employers can only use IDVT via the services of an IDSP to complete the digital identity verification element of right to work checks for British and Irish citizens who hold a valid (in-date) passport (including Irish passport cards). If an employee is seeking to rely on any other type of document, or an expired passport, then the IDVT route is not available and a manual check of the original document will need to be completed.

You must not treat less favourably those who do not hold a valid British or Irish passport, or do not wish to prove their identity using an IDSP. You must provide individuals with other ways to prove their right to work and should carry out the manual checking process in these circumstances.

It is important to highlight that the responsibility for the check remains with the employer, and they must ensure the IDSP they select to complete the identity verification carries out a check as prescribed by the Home Office before the commencement of employment. This means employers will still be expected to ensure they obtain and retain a copy of the documents that the IDSP checked, as well as a copy of the IDVT report showing that the employee has the right to work in the UK, for the duration of employment and for two years after the employment has come to an end (or longer, if required by another organisation e.g. HMRC). The copy must then be securely destroyed.

If you use the services of an IDSP for digital identity verification, and you reasonably believe that the IDSP has carried out their checks in accordance with Home Office guidance, you will have a continuous statutory excuse while the employee is in your employment.

IDSPs can carry out digital identity verification to a range of standards or levels of confidence. The Home Office recommends that employers only accept checks via an IDSP that satisfy a minimum of a Medium Level of Confidence. A list of certified providers is available for you to choose from on GOV.UK: Digital identity certification for right to work checks. It is not mandatory for you to use a certified provider; you may use a provider not featured within this list if you are satisfied that they are able to provide the required checks.

Home Office online right to work check service for non-British and Irish citizens

The Home Office service called 'Check a job applicant’s right to work' webpage on GOV.UK is free and allows overseas nationals to access and share their immigration status online to prove their right to work in the UK, including:

• the types of work they’re allowed to do
• how long they can work in the UK for, if there’s a time-limit

The information is provided in real-time directly from Home Office systems and some individuals can only use the online service to prove their right to work e.g. they have been issued with an eVisa, or have EU pre or settled status under the EU Settlement Scheme.

Biometric Residence Card (BRC), Biometric Residence Permit (BRP) and Frontier Worker Permit (FWP) holders are also only able to evidence their right to work using the Home Office online service. This means you cannot accept or check a physical BRC, BRP or FWP as proof of right to work in the UK.

A Home Office online right to work check will provide you with a statutory excuse against a civil penalty in the event of an employee is found working for you illegally.

3 basic steps to conducting an online right to work check

• Step 1: Carry out the Home Office online check by using the service entitled ‘View a job applicant’s right to work details’ on GOV.UK. You will need to ask the individual for a share code and their date of birth.

• Step 2: Satisfy yourself that any photograph on the online right to work check is of the individual presenting themselves for work.

• Step 3: Retain a clear copy of the response provided by the online right to work check (storing that response securely, electronically or in hardcopy) for the duration of employment and for two years afterwards.

Acceptable documents for Home Office online right to work checks

The Home Office online right to work checking service (which can be found here) supports checks for those who hold:

1. a biometric residence permit;

2. a biometric residence card;

3. status issued under the EU Settlement Scheme;

4. an EU Settlement Scheme Certificate of Application (CoA)

5. status issued under the points-based immigration system;

6. British National Overseas (BNO) visa;

7. Frontier workers permit

8. eVisa

Important Note: an employer cannot accept a physical document from the above list as proof of right to work in the UK - the list is only to show examples of those who can access the online service to get a share code.

How to use the Home Office online service

The individual may provide the share code to you directly, or they may choose to send this to you via the service.

To check the person’s right to work details, you will need to:

1. access the service ‘View a job applicant’s right to work details’ via GOV.UK

2. enter the ‘share code’ provided to you by the individual, and

3. enter their date of birth

It is not sufficient to simply view the details provided to the individual on the migrant part of the service and doing so will not provide you with a statutory excuse. You must check that the photograph on the online right to work check is of the individual presenting themselves to you, and that the information provided by the check relates to the individual and they are not an imposter).

You must only employ the person, or continue to employ an existing employee, if you are conducting a follow-up check, if the online check confirms they have the right to work and are not subject to a condition preventing them from doing the work in question.

You must retain evidence of the online right to work check. For online checks, this should be the ‘profile’ page confirming the individual’s right to work. This is the page that includes the individual’s photo and date on which the check was conducted. You will have the option of printing the profile or saving it as a PDF or HTML file.

You should store this securely, (electronically or in hardcopy) for the duration of employment and for two years afterwards. The file must then be securely destroyed.

Employer Checking Service

The Employer Checking Service is another type of online right to work check, but should not be confused with the above online right to work check using a share code - it is an entirely separate service that should be used primarily where an individual may not be able to give you any documentation, this could be because they have an outstanding appeal or their visa application is with the Home Office being decided. Or, if they arrived in the UK before 1989 the chances are that they do not have up-to-date documentation to show their immigration status or right to work in the UK.

In this case, you will need to use the Employer Checking Service to ask the Home Office if an individual has a right to work in the UK. You will need to provide the person’s full name, date of birth, nationality, UK address, job title, the number of hours worked per week, and their Home Office reference number.

If they do have a right to work, the Home Office will send you a positive verification notice.

To find out if you need to request a verification check from the Employer Checking Service and to conduct that check, you should use the online interactive tool: ‘Employer Checking Service.

Failure to carry out right to work checks

Failure to carry out the necessary checks can result in the Home Office issuing the employer with a civil penalty of £20,000 per breach and criminal sanctions among other ramifications where they are found to have knowingly employed an illegal worker.

Useful links to guidance on GOV.UK

Please refer to the relevant guidance on GOV.UK from the following links:

· The online interactive tool: ‘Check if someone can work in the UK’;

· The online interactive tool: ‘Employer Checking Service Enquiries’;

· An employer’s ‘Right to Work Checklist’

· The code of practice for employers: Avoiding unlawful discrimination while preventing illegal working

· Guidance on ‘An employer’s guide to the administration of the civil penalty scheme’.

If you cannot find the answer to your question, please contact the Employer Enquiry helpline on 0300 790 6268.

Last updated by Moira Walsh on 29 November 2022
Fulham Nannies